Opinion
C055707
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. HOWARD FLAKES, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Howard Flakes appeals his conviction for petty theft with a prior theft conviction (Pen. Code, § 666) and the sentence imposed following his conviction. He has requested this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
FACTUAL AND PROCEDURAL BACKGROUND
Around 3:00 p.m. on September 11, 2006, defendant went into a Radio Shack store. He was not making eye contact, was walking quickly and mumbling. Radio Shack clerk, Derek Hodges, had been trained to recognize these behaviors as indicators a person might try to steal something from the store. Defendant went directly to the wall with the i-Pods and Hodges asked if he needed help. Defendant asked Hodges to check for particular speakers in the back of the store. Hodges returned with the speakers and defendant told him they were the wrong ones and directed him to check a different set of speakers. Hodges went and checked again. When he returned, he told defendant they did not have those speakers and he advised him, "I know what youre doing, man. . . . I dont think its a good idea." Defendant responded angrily that he was going to buy something.
At the direction of Hodges, his coworker, Vardges Agababyan, went to the managers office to watch the security cameras. While Agababyan was watching, he saw defendant move the camera and turn it away. However, Agababyan could still see defendant in the security mirror. In that reflection, he saw defendant put something under his shirt. As Agababyan continued to watch, he saw defendant fix his shirt and saw a belt clip with a knife on it.
When defendant left the store, Hodges followed him outside to see what direction he was walking. Agababyan called the police. When Detective Rothwell arrived, Hodges checked the inventory and discovered four CD players were missing.
Detective Rothwell took the report from Hodges and Agababyan and viewed the surveillance tape. He was able to see defendants face in the video. Defendant was no longer in the store or in the immediate area. The following day, around 3:00 p.m., Detective Rothwell received a call indicating defendant had returned to the Radio Shack. Rothwell was in the immediate area and saw defendant outside the store. Detective Rothwell stopped defendant, Mirandized defendant and questioned him about the prior days events at Radio Shack.
Defendant initially denied being at the store. When confronted with the images on the video, defendant admitted being in the store, but denied stealing anything. After defendant was transported to the police station, Detective Rothwell questioned him again, and defendant admitted stealing a CD player. He also admitted moving the surveillance camera so his actions would not be detected by it and that he repeatedly sent Hodges to the back to give him time to steal the CD player.
Because it was an element of the offense and to keep the information from the jury, the parties stipulated defendant had previously been convicted of a theft offense.
The three prior prison term enhancements were bifurcated and defendant agreed to a court trial on those if the jury should find him guilty.
The jury found defendant guilty. In the bifurcated proceedings, the court found true the allegations that defendant had served three prior prison terms. Defendant was sentenced to the midterm of two years in state prison, plus one year each for the prior prison term enhancements, for an aggregate sentence of five years. Defendant was awarded a total of 302 days credit for time served and a restitution fine in the amount of $200 was imposed. Defendant was also ordered to make restitution in the amount of $38.99 to Radio Shack.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON, J.
ROBIE, J.